Kelo, More Discussion

June 27, 2005

We have moved here a long update to What is to be Done?:

Update: Another Postrel summary, with suggestions. 6.30.05. Shareholder activism not a promising route, in our opinion. Swelling the membership of Castle Coalition probably good, though. Subject to keeping an eye that their policies and methods are not blunderbuss.

And, there's a Kelo blog.

Virginia Postrel's "Appalled but not surprised" sees it pretty much like we do -- a wake-up call, not much of an innovation. People finally get it. The Institute for Justice, which represented the Kelo plaintiffs, is coordinating opposition.

While Kelo rightly sparks the immediate demand for political action, motivated by a visceral sense of injustice, over the long run a lot of intellectual work needs to be done. Kelo is the logical result... These are not easy questions, and they need to be asked.

And certainly, cities can legally bind themselves not to abuse eminent domain. A Dallas suburb has. Postrel also links to her 1999 essay about how to define pollution, one of the problems eminent domain is used to solve.

Thinking it through is essential, and that is difficult either in soporific indifference or white-hot outrage. Sneaking Suspicions says it clearly: "Accept the invitation."

Houston environs, however, wastes nary a moment. Seafood warehouse has been condemned for a private marina.

This latter occasions our default to a cognitive rumination. The marina folks could have embarked on the uncertainty and expense of negotiations with the seafood folks. Unlike Cuba, where property is not bought or sold, this is always a possibility.

But now there is known to be a more direct route, of lobbying, influence of one kind or another. A law professor used to say, "The goal of the monopolist is not profit, but a quiet life." The goal of the condemner is profit without an equal adversary, one who can walk away from the table. It is a different, and we think flimsier, temperament that insists on bypassing the give-and-take and going directly to fiat.

The entrepreneur vs. the fait-accompli tyrant. We know on which of those two branches our chirping admiration sits.

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Becker and Posner are applying precisely the kind of thought that sweeps a keen fresh wind over the roots of the heart of the matter [Ed.: keeping our powder dry here, no time for consistent metaphor!] here and here. They identify the issues and distinctions that eminent domain has never properly addressed.

• The value of property to its owner -- especially his home -- is greater than some generic fair market value.

FAIR COMPENSATION. To me, the only reasonable interpretation of "fair compensation" is the worth of property to the present owners. This often is greater than the highest bids for the property in the marketplace. For example, one of the 15 homeowners who objected to selling her home to the city of Bridgeport was born there 87 years ago. Clearly, the house was worth more to her than the city's assessment. Why should she be forced to sell at a price that could be way below its full value to her?

A second problem with the fair compensation test is that large property owners usually do better in the litigation over compensation than do small owners.

• The only problem eminent domain really needs to address is the greedy holdout.
• Courts face a difficult task in making rules that are right, but not getting involved in the facts and emotions of every justified taking.

They are so fine! The blogosphere is so rich!

And last, some links on Kelo from the often-problematic-"social-justice" site, Mirrors of Justice. They seem torn between their distrust of what they regard as individualism, and their visceral dislike of this decision.
Link, link, link, link, and yet another, via Amy Welborn, who likes them. There may be more later, or if you scroll further.

Update:
John Cornyn's bill in Congress won't really address the full scope of what people are concerned about. It's also awfully fast-out-of-the-holster (see "a lot of intellectual work" Virginia Postrel commends above). But our attorney-advisor applauds its simplicity.

Update:
Chocolate and Gold Coins nails it. Our private property rights are not protected by some document; they are protected by the right to vote.

Texas legislators are on the case.

Update:
Another intelligent discussion from Knowledge Problem.

Comments

[Jeff Hull]

"A second problem with the fair compensation test is that large property owners usually do better in the litigation over compensation than do small owners."

Usually do better? How about, always do better? I daresay most small property owners facing this sort of condemnation proceeding have no money at all to pay for legal representation. It would run into thousands of dollars. All the cards are held by the big developer, who has legal resources and friends in high places. Justice O'Connor had it exactly right: it is the little guy who will be pushed around by this ruling.

[Richard Lawrence Cohen]

It's great to see Americans on both sides of the political spectrum rallying against this injustice. I just hope that it doesn't get relegated to the extremes on both ends. On the face of it, it should be an issue that could galvanize ordinary people.

From the liberal perspective, I'll say this: for the past generation, conservatives have been scaring voters into thinking that the wicked liberal pro-government side was going to take away their guns. Now a conservative court has said it's okay to take away their homes and small businesses.

[dilys]

If I read the split correctly, Richard, it's Ginsburg / Stevens / Breyer / Souter & Kennedy that were the majority in this decision, with dissents by e.g. Thomas and Scalia. And the outrage at this kind of spectre of loss of property and quiet enjoyment expectations is truly across partisan lines.

[Michael H.]

Hi G&H
Thank you for linking to my blog.
I think that there is a real need for a better way for firms to acquire large blocks of land instead of going to the legisture and asking for eminent domaine. As many commenters pointed out, the "fair price" really isn't fair unless both parties are happy and that isn't the case here.